Criminal Justice Bill should be withdrawn

It is wrong to enact crucial legislation with so much speed and so little debate, writes Ken Murphy

It is wrong to enact crucial legislation with so much speed and so little debate, writes Ken Murphy

The Law Society believes that the Criminal Justice Bill, 2007, which will be before the Dáil briefly this afternoon, should be withdrawn until after the general election. It is wrong and dangerous that such legislation should be enacted with so much speed and so little debate.

Fundamental freedoms of citizens should only be reduced following a proper opportunity for informed public debate. This should involve a calm, careful, assessment of the real need for change. Practically no public debate has taken place on the contents of this Bill because no opportunity for such a debate has existed.

At 3.30 this afternoon the Dáil is scheduled to vote to complete the committee stage of the Criminal Justice Bill. The committee stage of the legislative process is when time can be taken to analyse a Bill line by line to eliminate errors and to improve it greatly in both technical and policy terms. A major Bill may spend many weeks in front of a select committee and usually emerges greatly improved from the process.

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So how long has the Criminal Justice Bill been in committee stage? Weeks? Days? No, in fact it is scheduled to commence the committee stage today - just four hours before the guillotine vote to end it.

So it must be a very short Bill? On the contrary, it runs to 57 pages of very complex drafting, consisting of hundreds of individual amendments to a great many different pieces of previous legislation.

This is precisely the type of law making which, under time pressure, produces errors such as the Dáil's inadvertent repeal last May of the offence of soliciting for underage sex.

Did the Dáil take the previous stage, the Bill's second stage, very seriously? The embarrassing fact is that the second stage debate collapsed ignominiously. It could not be completed last Friday when it was found that no quorum existed in the Dáil chamber. The Bill itself had only been published a week previously.

Very substantial change was made to the criminal law by the Criminal Justice Act, 2006, enacted as recently as July 2006 and running to some 197 sections. That measure was said to be a complete overhaul of the criminal justice system and was addressed, in large measure, to the problem of organised crime. Prior to enactment, that measure had been before the Oireachtas for over two years and was much changed and improved by the legislative process.

The Bill before the Dáil today in part reflects views of an expert group established by the Government as recently as last November. Almost incredibly, that group's rushed final report did not become available until after the Bill itself had not only been published but had completed its second reading in the Dáil. The final report only appeared on a website for the first time on Monday of this week.

The Bill's proposals include restrictions on the right to bail, the creation of new criminal offences, changes in sentencing, the extension of periods of detention for interrogation and significant curtailment of the right to silence. These proposals address fundamental principles of criminal and constitutional law.

In the view of the Law Society, every proposed Act of the Oireachtas should have the benefit of full and informed debate, including detailed consideration at committee stage, before both houses of the Oireachtas.

In measures which will affect every citizen in the country, including the Criminal Justice Bill, 2007, that debate itself should be preceded by a wider public consultation so that informed representations can be made from all sources to Dáil Éireann.

It is clear that in the timescale being allowed by the Government for this measure, this cannot happen. Of particular concern is the proposed attempt to interfere in judicial independence through imposing widespread and inflexible mandatory sentencing.

Equally disturbing are the proposals to further erode the right to silence and other due process values of the criminal justice system.

Normally the Law Society would make submissions to the Oireachtas in relation to a Bill of this kind. Solicitors who practise in the criminal courts every day have expertise and insights to offer to legislators which are frequently adopted to improve draft legislation.

The society can make no properly considered submission in relation to this Bill as the time available simply does not permit it.

Regrettably the society does not feel itself able to contribute usefully to a process that, in our opinion, is wholly devoid of the essential ingredients of informed debate.

No such debate has been possible in relation to this Bill. The Bill should be withdrawn today and revisited, with adequate time and public debate, after the general election.

That should happen today. Of course it won't.

Ken Murphy is the director general of the Law Society